United States District Court, C.D. California
MINUTES - GENERAL
ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD
NOT RECOMMEND THAT THIS ACTION BE DISMISSED FOR LACK OF
HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE.
11, 2016, Petitioner Vicente Gonzalez De Luna, a federal
immigration detainee proceeding pro se, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. Petitioner is a Mexican national who was taken
into custody by Customs Border Protection in San Ysidro,
California on January 13, 2014 and has been in federal
custody ever since. (Petition at 1-2). Although Petitioner
states that his indictment for “attempting to reenter
illegally” was dismissed on November 18, 2014, he was
transferred to the custody of DHS/ICE on December 29, 2014,
where he remains. (Id.).
admits that he has had two bond hearings since he was taken
into DHS detention. At the first bond hearing, held on July
29, 2015, the Immigration Judge (“IJ”) granted
bond and set the amount at $100, 000. (Id.).
Following a successful appeal to the Board of Immigration
Appeals (“BIA”), Petitioner’s case was
remanded to the IJ for further proceedings. On February 16,
2016, the IJ again granted a bond and reset the amount at
$60, 000, which Petitioner maintains is still
“extremely too high and it’s like having no bond
in my case because my family can’t pay 60, 000
dollars.” (Id.) (spelling and punctuation
errors corrected). According to Petitioner, the IJ’s
“refusal to establish an appropriate bond amount is
arbitrary and capricious, based on an erroneous
interpretation of the law, and constitutes [an] abuse of
discretion.” (Id. at 11).
states that the “Immigration Judge’s
[deportation] decision has been appealed to the Board of
Immigration Appeals, ” but notes that the BIA appeal,
“and any subsequent appeal to the federal courts, may
be pending for a period of two years or more.”
(Id.). In light of his already lengthy detention and
the anticipated delay before his removal order is finalized,
Petitioner asks that the Court “order that Petitioner
be released immediately from DHS custody either without bond
or with bond in a reasonable amount to be determined
by the Court, ” or, in the alternative, that a third
“bond hearing be held immediately before an immigration
judge.” (Id. at 12) (emphasis in original).
eligibility for release on bond pending removal and the
standards that apply are governed by different statutes
depending on the stage of removal proceedings, i.e.,
before the removal order becomes final and the statutory
90-day “removal period” is triggered; during the
“removal period”; or after the “removal
period.” The Supreme Court has explained:
While removal proceedings are in progress, most aliens may be
released on bond or paroled. 66 Stat. 204, as added and
amended, 110 Stat. 3009-585, 8 U.S.C. §§
1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final
removal order and during the 90-day removal period, however,
aliens must be held in custody. § 1231(a)(2).
Subsequently, as the post-removal-period statute provides,
the Government “may” continue to detain an alien
who still remains here or release that alien under
supervision. § 1231(a)(6).
Zadvydas v. Davis, 533 U.S. 678, 683 (2001).
the Petition alleges that Petitioner’s appeal of the
IJ’s removal order is pending before the BIA and has
not yet been presented to the Ninth Circuit, it appears that
Petitioner is being detained pursuant to 8 U.S.C. §
1226(a), which authorizes detention pending a decision on
whether an alien is to be removed from the United States.
See 8 U.S.C. § 1226(a) (“On a warrant
issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be
removed from the United States.”); Prieto-Romero v.
Clark, 534 F.3d 1053, 1060 (9th Cir. 2008) (§
1226(a) applies even when a removal order is
“administratively final” but not
“judicially final”); Casas-Castrillon v.
Dep’t of Homeland Sec., 535 F.3d 942, 947 (9th
Cir. 2008) (mandatory detention during 90-day “removal
period” under § 1231(a) does not begin until the
circuit court denies the petition for review of the
IJ’s removal order and withdraws the stay of removal).
nationals held under section 1226(a) may not be detained
“for a prolonged period” without being provided
“a neutral forum in which to contest the necessity of
[their] continued detention.” Id. at 948-49
(an alien “whose removal has been delayed while he
pursues judicial review of his administratively final order
of removal” is entitled to an individualized hearing).
Continuing detention becomes “prolonged”
“at the 180-day mark.” Rodriguez v.
Robbins, 715 F.3d 1127, 1136 (9th Cir. 2013) (citing
Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir.
2011)). The Ninth Circuit has held that “a federal
district court has habeas jurisdiction under 28 U.S.C. §
2241 to review Casas bond hearing determinations for
constitutional claims and legal error.” Singh v.
Holder, 638 F.3d 1196, 1200 (9th Cir. 2011). However,
pursuant to § 1226(e), a court does not have
jurisdiction to entertain a challenge to a bond amount when
the alien’s continued detention is statutorily
authorized under § 1226(a), as here. See
Prieto-Romero, 534 F.3d at 1067.
to the Petition, Petitioner has been in DHS/ICE custody since
December 29, 2014, well beyond the 180-day presumptively
“prolonged” period during which an alien may be
held without a hearing. (Petition at 1). However, the
Petition indicates that Petitioner has had two bond
hearings, with favorable results both times. (Id.).
At each hearing, Petitioner was found eligible for release
pending removal and a bond was set. (Id.). Thus, the
IJ has twice found in Petitioner’s favor that he is not
a flight risk or a danger to the community and may be
released upon payment of a bond. See Singh, 638 F.3d
at 1203 (“[T]he government must prove by clear and
convincing evidence that an alien is a flight risk or a
danger to the community to justify denial of bond at a
Casas hearing”). Accordingly, it appears that
Petitioner has received the process he was due. See de
Minnella v. Santa Ana, 2013 WL 3121988, at *4-5 (C.D.
Cal. June 19, 2013) (alien’s challenge to detention
under section 1226 was moot because petitioner had already
had an individualized hearing and thus had been accorded the
only available remedy the court could order).
Petitioner summarily asserts that his continued detention
violates due process, an IJ has twice authorized his release
on bond. Therefore, the gravamen of the Petition appears to
be a challenge to the $60, 000 bond amount, which Petitioner
argues is disproportionate to his means. (Petition at 1 &
12). However, Congress has plainly stated that challenges to
bond amounts under section 1226 are not cognizable
on judicial review. See 8 U.S.C. § 1226(e)
(“No court may set aside any action or decision by the
Attorney General under this section regarding the detention
or release of any alien or the grant, revocation, or denial
of bond or parole.”); see also Prieto-Romero,
534 F.3d at 1067 (the court does not have authority to
“review the reasonableness of the amount of bond”
when alien is detained under § 1226); Rivera v.
Holder, 307 F.R.D. 539, 546 (W.D. Wash. 2015) (citing
Prieto-Romero for the proposition that a court has
“no authority to hear [a] challenge that [the] bond
amount was excessively high”); Yam-Pech v.
Holder, 2014 WL 183822, at *3 (D. Colo. Jan. 16, 2014)
(“[T]he immigration judge’s decision to grant
bond in a specific amount is an exercise of executive
discretion under § 1226(e) that is not subject to
judicial review.”); Amador v. ICE Field Office
Director, 2011 WL 6968323, at *3 (W.D. Wash. Nov. 28,
2011) (court lacked jurisdiction to order IJ to reduce bond
amount because § 1226(e) “does not permit the
Court to review the IJ’s discretionary judgment
regarding the reasonableness of the bond amount, even if
petitioner cannot afford to post it”); Garcia v.
Kane, 2010 WL 334692, at *1 (D. Ariz. Jan. 22, 2010)
(“[B]ecause Petitioner remains lawfully detained under
§ 1226(a), the Court is without jurisdiction under
§ 1226(e) to review the reasonableness of the bond
amount even if Petitioner cannot afford to post it.”).
determinations prior to and after the “removal
period” are governed by different statutes. Congress
has explicitly divested courts of jurisdiction to hear
pre-removal period bond challenges. 8 U.S.C. § 1226(e).
However, in Zadvydas, the Supreme Court held as a
matter of statutory construction that section §
1231(a)(6), which authorizes the INS to continue to detain an
alien beyond the 90-day “removal period, ” must
be read to limit post-removal period detention only
to a “period reasonably necessary to secure
removal” and does not permit indefinite detention
“once removal is no longer reasonably
foreseeable.” Zadvydas, 533 U.S. at 699.
According to the Supreme Court, the statute implicitly
incorporates a presumptively reasonable six-month period
beyond which detention is no longer permitted absent a
showing by the government that the alien’s removal is
reasonably foreseeable. Id. at 701. Citing
Zadvydas, the Ninth Circuit has observed that
“serious questions may arise concerning the
reasonableness of the amount of [a post-removal period] bond
if it has the effect of preventing an alien’s
release.” Doan v. INS, 311 F.3d 1160, 1162
(9th Cir. 2002).
Petitioner’s pre-removal period detention under §
1226(a) is not indefinite as it will come to a conclusion at
the end of judicial review of the removal order. As the Ninth
Circuit has explained, Zadvydas’s holding
applies only to post-removal period detentions under ...